Cherberg v. Peoples Nat. Bank of Washington, 2089--II

• Decision Date: 16 April 1976
• Docket Number: No. 2089--II,2089--II
• Citation: 15 Wn.App. 336,549 P.2d 46
• Parties: James J. CHERBERG and Arlene M. Cherberg, his wife, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, a corporation, Defendants, Joshua Green Corporation, a corporation, Appellant.
• Court: Washington Court of Appeals

Page 336

15 Wn.App. 336

549 P.2d 46

James J. CHERBERG and Arlene M. Cherberg, his wife, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, a corporation, Defendants Joshua Green Corporation, a corporation, Appellant.

No. 2089--II.

Court of Appeals of Washington, Division 2.

April 16, 1976.

D. Gordon Willhite, of MacBride, Sax & MacIver, Seattle, for appellant.

Lee Olwell, of Olwell, Boyle & Hattrup, Seattle, for respondents.

REED, Judge.

This is an appeal by defendant-lessor, Joshua Green Corporation, hereafter called lessor, from a judgment on a jury verdict rendered in favor of plaintiff-lessees, James J. and Arlene M. Cherberg, hereafter called Cherbergs, for an alleged failure to make repairs to a wall of the building in which the leased premises are located.

In 1967 Cherbergs leased from Seattle First National Bank, a designated portion of the Lewis Building on Fifth Avenue in Seattle, Washington, and established therein a successful restaurant business. In 1972 the defendant-lessor acquired the building subject to plaintiffs' lease and one other. In April 1972, Peoples National Bank of Washington, owner of the property abutting to the south, commenced demolition of the Blue Mouse Theater located thereon, in order to construct a high-rise banking facility. This work resulted in exposing the south wall of the Lewis Building, revealing it to be structurally unsound and in need of substantial repairs in order to satisfy City of Seattle safety requirements.

The bank notified lessor who promptly wrote Cherbergs advising them in part that the city concurred with the bank's engineer's findings and that

They have concluded that the Lewis Building is structurally unsound and creates a hazard to the safety of the persons occupying the building. . . . We are advised by the Bank that the City is processing a letter which may require the abatement of the use of the property.

Shortly thereafter lessor's attorney wrote lessees enclosing a copy of a letter from the city concerning the need for repairs ¹ and indicating lessor would probably elect not to make corrections in view of the age of the building, risks involved and cost. Cherbergs countered that the lease agreement required lessor to make 'structural repairs' and demanded it do so promptly, pointing out the lease did not expire until September 30, 1977 and that Cherbergs would suffer substantial damages if their tenancy should be interrupted.

The parties met on numerous occasions and exchanged considerable correspondence during which neither wavered in its position and the lessor eventually gave written notice of its election to terminate the lease and announced its intention to post safety warnings on the building. Cherbergs reacted by closing the restaurant for a period of 6 or 7 days. No notices were in fact posted and Cherbergs reopened, after learning from an independent consultant that repairs could be made to bring the wall into conformity with city requirements. They again indicated they expected lessor to make the repairs. In the interim, while the parties were negotiating, the bank agreed with lessor to leave in place a portion of the theater wall in order in provide temporary support to the defective wall. In July 1972, however, the bank, not wishing to be delayed further in its construction plans, with consent of the lessor, repaired the wall at its own expense at a cost of $30,000 to $50,000.

It is undisputed that the lessor and the bank had mutual interests and that Joshua Green, lessor's president, was also a senior officer of the bank and a member of its board of directors. Neither is it disputed that it would have been highly advantageous to both lessor and the bank if the building could be razed. In fact, during February and March of 1972 the lessor, and thereafter until sometime in July 1972, the bank, employed a Mr. Tucker to negotiate for purchase of the Lewis Building tenancies. No agreement was reached through these negotiations, however, and they ended when the repairs were accomplished by the bank.

All negotiations having come to naught, plaintiffs brought suit in July 1972 seeking damages and injunctive relief against lessor and the bank alleging in one cause of action (1) a breach of lessor's duty to repair, (2) negligent damage to the wall during demolition, and (3) a conspiracy between defendasnts to destroy plaintiff's business. When all evidence was in, the trial court dismissed the bank and the negligence and conspiracy claims but instructed the jury that the lessor was liable for any damage proximately caused by its failure to make the needed repairs. Additionally, the court instructed on a theory of 'willful misconduct,' I.e., the tort of intentional business interference. The evidence showed a loss of profits of approximately $3,100. The jury returned a general verdict in the sum of $42,000 with a special finding that the lessor acted willfully.

The lessor assigns error to denial of its motion for a directed verdict and the court's instructions on duty to repair, intentional tort and damages. These assignments present the following issues: (1) Did the lessor have a duty to repair? (2) Did the lessor breach an implied covenant of quiet enjoyment? (3) Was it error to submit willful misconduct- --intentional business interference--to the jury and allow consideration of damages for inconvenience, discomfort and mental anguish?

The pivotal issue before the trial court was whether the lessor had a duty to its tenant to make repairs to the wall in question. Cherbergs, contending the lease was ambiguous in this regard, offered the testimony of one Henry Wood, who negotiated the lease on behalf of the original lessor, Seattle First National Bank, to prove the bank intended to assume that burden, Lessor objected to the admission of this testimony, contending the lease was not ambiguous, and clearly contained no express covenant by lessor to make such repairs. The trial court found the lease was ambiguous and ruled it would resolve the issue as a matter of law. The trial court then, however, sustained the objection to admission of the testimony but allowed it to be presented in an offer of proof. After all testimony was in, the court resolved the 'ambiguity' against lessor, saying it was 'taking into consideration the testimony of Mr. Wood.' This was error for two reasons as we shall demonstrate.

First, an offer of proof serves to inform the trial court of the content and purport of the evidence sought to be admitted, and to preserve the record for appellate review when the exclusionary ruling is challenged. Cf. McCarty v. Hagen, 67 Wash.2d 434, 407 P.2d 953 (1965); Cameron v. Boone,62 Wash.2d 420, 383 P.2d 277 (1963). Unless the court sees fit to change it ruling, the proffered evidence passes out of the case in the trial court and may not be considered for any purpose.

Secondly, we find no ambiguity in the lease before us which would permit recourse to parol testimony. The pertinent lease provisions are as follows:

(5) Unless otherwise provided in this lease, Lessee, having ascertained the physical condition of said premises from a careful and complete inspection thereof, accepts said premises in present condition, no exceptions. Lessee shall place, maintain and keep the leased premises, including the store front, if any, in good, neat and sanitary physical condition, and at Lessee's sole expense shall promptly make all repairs and do all acts and things necessary or incidental thereto; provided, however, that Lessee's said obligation shall not extend to the foundations, structural bearing parts, roof and outside walls of the premises unless repairs thereto or work thereon be necessitated by Lessee's act or negligence. . . .

(16) Lessee shall allow Lessor and Agent free access to said premises at all reasonable times for purpose of inspecting of the same or of making repairs, additions or alterations to said premises or to the building in which said premises are located But this right shall not constitute or be construed as an agreement on the part of Lessor to make any repairs, which Lessee is required to make, or to make any additions or alterations to said premises. . . .

(17) Unless otherwise provided in a rider to this lease, the use of the outside area of the walls and the roof of said premises or the building in which said Lessor who shall have the right to utilize the same for any purposes desired including sign purposes; . . .

(Emphasis added.)

Leases are contracts, as well as conveyances, and as such are to be given effect so as to carry out the intentions of the parties as manifested by the words used. Allied Stores Corp. v. North West Bank, 2 Wash.App. 778, 469 P.2d 993 (1970). It is not the province of the court to make a contract for the parties or impose duties where they do not exist. Grant County Constructors v. E. V. Lane, Corp., 77 Wash.2d 110, 459 P.2d 947 (1969). It is only when the intention of the parties cannot be deduced from the verbiage used that an ambiguity may be said to exist, justifying a resort to parol evidence. No ambiguity exists unless the language adopted by the parties is doubtful or is fairly susceptible to one of either of two meanings contended for. Grant County Constructors v. E. V. Lane, Corp., supra.

Washington adheres to the common law rule that, in the absence of an express covenant, the landlord is under no duty to make repairs to the demised premises, even if they become defective through decay or deterioration. Conradi v. Arnold, 34 Wash.2d 730, 209 P.2d 491 (1949); Clarke v. Yukon Invest. Co., 83 Wash. 485, 145 P. 624 (1915); 49 Am.Jur.2d Landlord and Tenant § 774 (1970); 1 American Law of Property § 3.78 (1952). Nor may such a covenant be raised by inference. Cordes v. Guy Invest. Co., 146 Wash. 143, 262 P. 131 (1927).

In the lease before us it can readily be seen there is nothing rising to the statute of an express covenant by the lessor to make...